United States v. Edwards

Decision Date03 May 2016
Docket NumberCase No. 14 CR 421-1
Citation184 F.Supp.3d 635
Parties United States of America, Plaintiff, v. Enkhchimeg Ulziibayar Edwards, Defendant.
CourtU.S. District Court — Northern District of Illinois

184 F.Supp.3d 635

United States of America, Plaintiff,
v.
Enkhchimeg Ulziibayar Edwards, Defendant.

Case No. 14 CR 421-1

United States District Court, N.D. Illinois, Eastern Division.

Signed May 3, 2016


184 F.Supp.3d 636

Peter S. Salib, U.S. Attorney's Office, Chicago, IL, AUSA, United States Attorney's Office, Chicago, IL, for Plaintiff.

ORDER

Judge Richard A. Posner

After a four-day jury trial, the defendant, Enkhchimeg Ulziibayar Edwards (who goes by "Eni Edwards"), was found guilty of two counts of attempted obstruction of justice (also described as "witness tampering") in violation of 18 U.S.C. § 1512(b)(3), and two counts of making false statements to her employer, U.S. Customs and Border Protection (CBP), an agency of the Department of Homeland Security, in violation of 18 U.S.C. § 1001(a)(2). (The State Department's Diplomatic Security Service has also been involved in this case, as will be noted.) Before the jury rendered its verdict, the defendant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, which provides relief "if the evidence, viewed in the light most favorable to the government, would not justify any rational trier of fact in finding the elements of the crime charged beyond a reasonable doubt." United States v. Rahman , 805 F.3d 822, 836 (7th Cir.2015). I deferred ruling on the motion until the jury rendered its verdict, after which the defendant moved for a judgment of acquittal or in the alternative for a new trial, pursuant to Rules 29(c) and 33(a) respectively. I conducted a hearing on the defendant's motion on April 27. I now must decide whether to grant or deny, in whole or in part, the motion.

Mrs. Edwards, born in Mongolia in 1977, came to the United States in the late 1990s, became a lawful resident of this country in 2003 or 2004 and an American citizen in 2005. She attended several American colleges, graduating from Roosevelt University in Chicago. In 1998

184 F.Supp.3d 637

she had married an American named Kenneth Edwards (whose name she took) who happens to be an agent of CBP. Fluent in Russian and Polish as well as in English and Mongolian, Mrs. Edwards long aimed at becoming a CBP agent herself, though she did not attain this goal until 2009, having formally applied the previous year. In the meantime she worked mainly at the "Gate Gourmet" at O'Hare Airport (in an executive capacity, rather than as a waitress or kitchen worker) and became friends there with an employee named Michael Rosel.

Enter Tsasanchimeg Erdenekhuu, a young cousin of Mrs. Edwards. Tasha, as the parties refer to Ms. Erdenekhuu, had come to the United States on a temporary visa in 2001 as a teenager and decided to stay, though without obtaining the permission of the U.S. government to do so. In 2002, at age 17, she was arrested by immigration officers, and the following year was ordered deported from the United States (i.e., airmailed back to Mongolia at her expense). She was placed in a detention center pending deportation. After turning 18 that summer, she was eligible for bail while awaiting deportation, and Mrs. Edwards' parents (who, by the way, now live in Chicago too) sent Mrs. Edwards the $4,000 in bail money required to get her cousin released from the detention center. Although ordered deported in 2003, thirteen years later Tasha remains in Chicago, living with her third American husband. Although she lives openly in Chicago and a document placed in the record by the government gives a Chicago street address for her and the deportation order issued in 2003 has never expired or been withdrawn, the government has yet to make any move to deport her. The reason for this forbearance is unexplained, but probably it's that she has, so far as anyone has suggested, never been involved in any criminal activity. Noncriminal illegal immigrants in the United States are rarely deported; given the estimate that there are 10 or 11 million such persons in the nation at this time, that they constitute at least 5 percent of the American work force, that they have a lower crime rate than American citizens, and that law enforcement agencies have their hands full with more pressing problems than that of law-abiding though unauthorized immigrants, it is not surprising that persons such as Tasha generally are left alone.

When arrested by the immigration authorities and later ordered deported Tasha could not feel entirely secure. It occurred to Mrs. Edwards (doubtless to Tasha as well) that Tasha would be completely secure only if she became a lawful U.S. resident, a status she would be likely to attain if she entered into a marriage with an American citizen that was either bona fide, or, if not, nevertheless a marriage that would not be exposed as fraudulent. Opportunity struck in 2003, when Mrs. Edwards suggested to her friend Michael Rosel—a divorced man in his late forties who testified in this case that he finds Asian women attractive—that he consider marrying Tasha. Doubtless Mrs. Edwards mentioned the possibility to Tasha as well. Tasha and Rosel were soon married—and after ten months divorced. The marriage had been a flop, largely it seems because of the large age difference between the spouses (about 30 years), Tasha's English, which apparently was very poor at the time, and her apparent unwillingness to have sex with Rosel. Indeed, there is reason to think that she found Rosel a totally unsuitable husband. The marriage ended before Tasha had obtained any change in her immigration status; she was, as she remains to this day, under an order, though never enforced or, it seems, intended to be enforced, of deportation.

The government believes or professes to believe that the marriage of Tasha and

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Rosel was fraudulent, and points us to the federal statute that provides that "any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both." 8 U.S.C. § 1325(c). However, the statute of limitations for marriage fraud is five years, see 18 U.S.C. § 3282(a) ; United States v. Rojas , 718 F.3d 1317, 1319 (11th Cir.2013), and starts to run on the date of the marriage. Id . at 1319–20 ; United States v. Ongaga , No. 14–20235, 820 F.3d 152, 159–61, 2016 WL 1458942, at *3–4 (5th Cir. Apr. 13, 2016). Therefore no one—not the cousin, not Mrs. Edwards, not Mr. Rosel—could be prosecuted for the alleged marriage fraud after July 21, 2008, and no one has ever been prosecuted for it.

U.S. Immigration and Customs Enforcement ("ICE," as it is called), which like CBP is an agency of the Department of Homeland Security, has tried to warn the public that "Terrorists and other criminals can use marriage fraud as a vehicle to enter the United States, often due to the willingness of U.S. citizens. They can then hide their identity, gain unlawful employment, access government buildings, and open bank accounts and businesses to conduct further criminal activity." ICE, "Marriage Fraud Is Not a Victimless, Innocent Crime," www.ice.gov/sites/default/files/documents/Document/2014/marriageFraudBrochure.pdf (visited May 1, 2016, as were the other websites cited in this opinion). There is no indication, however, that Mongolians who enter the United States engage in that type of activity.

Fast forward to 2008, when the U.S. Embassy in Ulan Bator, the capital of Mongolia, began worrying about a number of Mongolian "throat singers" (see "Mongolian Throat Singing—Batzorig Vaanchig," YouTube , www.youtube.com/watch? v=1rmo3fKeveo) who requested performance visas to allow them to visit Chicago—when two years previously several other throat singers, having obtained such visas and come to Chicago, did not return to Mongolia but instead vanished (presumably they are living somewhere in the United States, all or most of them perhaps in Chicago, home to some 3000 or 4000 persons of Mongolian origin—in addition Chicago is a "sanctuary city," meaning that it doesn't assist federal authorities to hunt down illegal immigrants). In retrospect the concern of the embassy officials seems strange—I call their anxiety about a Mongolian influx to the United States the "Mongolian Panic." There are very few Mongolians in the United States (probably no more than 20,000, though there are no hard statistics)—for that matter there aren't many Mongolians in Mongolia, which has a population of only about 2.8 million. And while doubtless many of the few Mongolians in the United States are, like Tasha, illegal aliens, they do not appear to be involved in criminal activities, and therefore, one would think, would be of no interest to the authorities, just as Tasha quickly ceased to concern the authorities, who could but have never bothered to deport her.

Officials from the U.S. Embassy in Mongolia referred their concerns to the State Department's Diplomatic Security Service office based in Chicago, whose agents began to investigate visa applications filed by Mongolian nationals. Their concern focused on the American Mongolian Association, a tiny Chicago civic organization (apparently it has only 1 to 4 employees) that the State Department believed had been trying to smuggle Mongolians into the United States via Chicago, never to return to Mongolia, though there is no proof of such smuggling....

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